Coquina Ridge Properties v. East West Co., 70--1064
| Decision Date | 12 November 1971 |
| Docket Number | No. 70--1064,70--1064 |
| Citation | 255 So.2d 279 |
| Parties | COQUINA RIDGE PROPERTIES, Appellant, v. EAST WEST COMPANY, a Texas corporation authorized to do business in Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jackson A. Cargill and Charles H. Williams, Orlando, for appellant.
John Minot, of Shepard, Shepard & Minot, Cocoa, for appellee.
Defendant appeals from a summary final judgment entered in favor of the plaintiff. Plaintiff filed a complaint seeking collection of a promissory note executed and delivered by defendant to Memorial Village Builders, Inc. Defendant's answer raised the defense of lack of consideration for the execution of the said note. Both parties had moved for summary judgment with supporting affidavits.
We reverse on the basis that the evidence before the trial court reflects the existence of genuine issues of material fact with respect to the consideration supporting the execution of the promissory note thereby precluding the entry of summary judgment.
Before summary judgment may be granted there must be no genuine issue as to any material fact and the moving party must be entitled to summary judgment as a matter of law. Graham v. First Marion Bank, Fla.App.1970, 237 So.2d 793; Rule 1.510, FRCP, 31 F.S.A. See also Shollenberger v. Baskin, Fla.App.1969, 227 So.2d 79. Conversely, if disputed issues exist as to any material fact a summary judgment should not be granted. See 30 Fla.Jur., Summary Judgment, § 9. The trial court may not try or determine factual issues in such proceedings; consider either the weight of the conflicting evidence or the credibility of the witnesses in determining whether there exists a genuine issue of material fact; substitute itself for the trier of fact and determine controverted issues of fact. Baskin v. Griffith, Fla.App.1961, 127 So.2d 467; Humphrys v. Jarrell, Fla.App.1958, 104 So.2d 404; Jones v. Stoutenburgh, Fla.1956, 91 So.2d 299; Willard Homes, Inc. v. Sanders, Fla.App.1961, 127 So.2d 696; Strode v. Southern Steel Construction Company, Fla.App.1966, 188 So.2d 690. 1 Even if the judge who is hearing the motion for summary judgment will be the same judge who will determine controverted issues of fact following a full hearing on the merits the distinction between the function of the judge in these two capacities must be maintained. In Baskin v. Griffith, supra, it is stated, 127 So.2d at p. 474:
Proceedings for a summary judgment may never be used as a substitute for a trial if from the...
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